Texas Muni & Justice Courts – Understanding the Due Process Consequences of Entering a Plea

So, you’ve been [falsely] accused[1] of committing a “transportation”[2] offense by some improperly informed, improperly educated, and improperly trained authoritarian statist funded robot that seized you at your liberty and held you in an unreasonable custodial arrest without a proper warrant of arrest or any articulable probable cause[3] just so that s/he could issue you a “[un]uniform traffic citation” that you must now deal with.

The citation tells you that you must appear on some future date and time before some particular magistrate presiding over some particular court named on the citation that allegedly has jurisdiction of the offense.[4]

Although, it should be clear to anyone that can read and comprehend constitutional language and principles that it is a direct violation of the separation of powers provision of Article 2 of the Texas Constitution and Penal Code Sec. 32.48 for a municipal or state police officer to issue an ‘order’ via a “transportation” citation that simulates a legal process such as a subpoena or summons. Sheriffs and constables, however, might potentially be excluded as being capable of committing such violations. The basis for asserting that it’s a violation of the separation of powers and the law is that both municipal and state police officers are executive branch functionaries and agents, and the issuance of a summons or subpoena having the legal force of a full-fledged judicial order requiring an individual’s compliance is entirely a judicial branch power and function, which executive officers are constitutionally forbidden to exercise. The basis for asserting that sheriffs and constables are potentially exempted from being charged with such violations is that their offices are actually established, by the Texas Constitution in Art. 5, Secs. 23 and 18 respectively, as officers of the judicial branch of government rather than the executive. But this particular issue is not the focus of this article.

When you eventually appear at the court named in the paperwork that accompanied the citation “on or before” the appointed date and time, as that phrase is typically printed on most of these citations, the magistrate is required by the Code of Criminal Procedure to perform the duties imposed upon him/her by Art. 15.17[5] of that code. And s/he is required to do so in simultaneous compliance with the provisions of Arts. 45.018(b), 16.01, 27.14(d), and 14.06(b) and (c) of that same code. It is imperative, however, that you make no oral response or written pleading to anything that happens in that court room without first reserving your right to special appearance by stating the phrase:

Pursuant to Art. 1.02, Code of Criminal Procedure and Rule 120a, Texas Rules of Civil Procedure, I hereby reserve my right of special appearance for the purpose of challenging the jurisdiction of this court and these proceedings, and the court should be well aware that a challenge requiring an evidentiary determination of a court’s jurisdiction is both a civil matter and proceeding.

The judge may try to tell you that, since this is presumed to be a criminal matter, a special appearance doesn’t apply. And if s/he does so, you should again state:

Objection! A challenge to a court’s jurisdiction, and any proceeding convened for the purpose of determining that jurisdiction, is a civil matter, not criminal. There is no evidence of in personam or subject matter jurisdiction on the record, and as a matter of right I am challenging the jurisdiction of this court by demanding that the state be ordered to produce its evidence on and for the record proving that the officer’s warrantless arrest of the Accused was based upon both reasonableness and articulable probable cause establishing that the Accused is a person that was engaged in and had a legal duty to perform under the regulated subject matter of “transportation” as governed by the commercial regulatory code of the same name so as to properly establish and invoke this court’s subject matter and in personam jurisdiction over the Accused.

Be aware that the prosecution will almost certainly object and attempt to claim that no arrest ever took place. However, the Texas Court of Criminals appeals ruled differently in the case of Azeez v. State, 248 S.W.3d 182, wherein the court said “We have construed this provision [Sec. 543.001, Transportation Code] to mean that, [**22] at least as a matter of state law, a restriction upon personal liberty that amounts to less than “full custodial arrest” may nevertheless constitute an ‘arrest.’” Like most federal courts, the Texas courts are notorious for making rulings that favor governmental power grabs over individual rights, the rule of law, and constitutional conformity, whether that conformity be state or federal. But this myopic analysis in Azeez that tries to make it appear that a law enforcement officer’s roadside seizure does not actually constitute a full-blown custodial arrest does not appear to harmoniously coexist with the United States Supreme Court’s idea of what constitutes a custodial arrest.

Justice Stewart’s opinion in the 1980 Mendenhall[6] case first set the current standard whereby an individual may determine if they are being held via a warrantless custodial arrest “a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave, and as long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would require some particularized and objective justification.

The Supreme court would soon set that bar even lower in the case of California v. Hodari D.[7] when the court ruled that “To constitute a seizure of the person, just as to constitute an arrest — the quintessential “seizure of the person” under Fourth Amendment jurisprudence — there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s “show of authority” to restrain the subject’s liberty.” The latter being consistent with the level of detention found in your common everyday traffic stop. Even more so in Texas since the statute plainly states that the officer has arrested you and may release you from custody if you sign the citation promising to appear later in the designated court. The statute even uses the term “custody.” So why is the Texas Court of Criminal Appeals even having a discussion as to whether or not the arrest is a warrantless custodial arrest that is fully afforded 4th and 5th Amendment protections? Because they are attorneys who require and thrive on conflict in order to justify their existence and continuing theft of the people’s money in the form of salaries and benefits for themselves and fines and fees for the various levels of government, that’s why.

Therefore, the prosecutor is blatantly lying to the court when s/he says that what took place on the roadside was merely an investigative detention rather than a warrantless custodial arrest. So what do you do about it? I would suggest something like this:

Objection! The prosecution appears to be misrepresenting the facts in an effort to mislead this court and deprive the Accused of the right to an examining trial for a proper determination of reasonableness and probable cause by a neutral and detached magistrate. The prosecution should be well aware of the Texas Court of Criminal Appeals case of Azeez v. State decided in 2008, wherein the court states that a traffic stop in Texas does constitute a warrantless arrest. The prosecution should be as equally aware of the United States Supreme Court’s determinations in the cases of Mendenhall and Hodari, wherein the court ruled that a person was considered to be in a custodial arrest if the they believe that they were unable to leave because they are being subjected “to an officer’s “show of authority” to restrain the subject’s liberty,” which is precisely what occurred in this matter. The Accused specifically asked if they were free to leave and the arresting officer immediately responded that they were not free to leave.

Don’t let them try to tell you or act like there wasn’t a warrantless custodial arrest, because there absolutely was.

However, you must be forewarned that none of this will ever happen in the manner and order prescribed by common sense, law or statute, which is precisely how I’ve laid it out here. And while you must expect that it will be either ignorantly or intentionally ignored or incorrectly done, you must not simply ignore it or allow it to happen. You must be prepared to object to everything that the magistrate/judge and the prosecutor fails to do that violates constitutional protections, the law, the rules of procedure, and your inherent fundamental rights, including demanding the judge’s or prosecutor’s immediate disqualification from the case. Be aware, however, that the disqualification of a Texas judge from a case requires a written pleading of the facts that support the disqualification, and it must be made and filed under oath, i.e. under penalty of perjury.

Isn’t it funny how you and I are required to do virtually everything “under penalty of perjury” and other threats of dire punishment for making any false writings, claims, or allegations whenever we have dealings with our public servants, but those same public servants aren’t required to verify the truth and validity of their own claims and actions “under penalty of perjury” when dealing with or moving against us? And to add insult to often serious injury resulting from any perjury they may commit, they are even more likely to simply walk away scot-free and unaccountable for doing so, even when they’ve been caught red-handed, and regardless of the harm they may have caused with their lies.

Since you are now somewhat forewarned that Texas municipal and justice courts are notorious for not playing by the rules, and very often prefer just making up their own as they go, you must learn to cope with their actions that are in violation of the law, the rules, and your rights. The best way I know of to do that is by knowing as much as possible about what their rules and procedures actually require them to do, while also being able to readily identify what they are actually doing that is in direct violation of those rules and procedures, and potentially your due process rights in the process. I am going to go into detail about several of the initial and most important violations that will almost certainly occur in your case.

The first one of the many things they do wrong is to violate your right of proper, sufficient and timely notice of the allegations against you by failing to serve you with a copy of a valid verified criminal complaint for each alleged offense, which is almost never done prior to the initial appearance proceeding you are “ordered” to appear for on the citation. That failure is a direct violation of the criminal procedures and your due process rights under the provisions of Arts. 45.018(b), 2.04, and 2.05, Code of Criminal Procedure. It is in no way proper, sufficient or timely when they serve you with the complaint on the day of a court proceeding since the code clearly states that the Accused “is entitled to” such service “no later than one day prior to any proceeding in the prosecution under that complaint.”

Which means that you must also fully understand that the phrase “is entitled to” “creates or recognizes a right,” [8] a right that the prosecution and the court just knowingly and willfully violated. It is also not in any way fair, impartial, or just, that the Accused would have been afforded absolutely no time prior to the proceeding in which to read and prepare a proper set of pleadings in relation to the jurisdiction and allegations as written into the criminal complaint(s), as it is a verifiable fact that the specific allegations and their language as written into the criminal complaint(s) is almost always vastly or completely different from that which is written on the face of the citation. This is precisely why the right to be served with a copy of the complaint(s) “no less than one day prior to any proceeding” is imperative and protected by the Code of Criminal Procedure, but entirely ignored or outright denied by the vast majority of our Texas justice and municipal courts.

The prosecutor may well stand up in court, especially if s/he is a city attorney in a large municipality, and try to say something like:

Your honor, the criminal complaints have been available to the defense by simply going to the municipal web site and downloading a copy for themselves. Since they are publicly accessible the defendant has had ample opportunity to obtain a copy. Proper notice and service of the complaint has been done under those circumstances and conditions and would I ask that the court overrule the defendant’s objections relating to improper notice.

This is where you better be listening to what you are hearing, so you can properly respond to this inept and underhanded dribble from the municipal, county, or district scumbag before it’s too late. Your immediate response needs to be:

Objection! Is the prosecuting attorney seriously attempting to singlehandedly rewrite the law on proper, sufficient and timely service and notice as required by Arts. 28.01, Sec. 3 and 45.018(b), Code of Criminal Procedure, which requires service be performed by either personal service or by mail as it cannot be made in open court without violating the Accused’s protected right to service prior to any proceeding under 45.018(b)? I can find no statutory authority for the prosecution to provide notice by posting something on a web site, regardless of who controls it.

Furthermore, I move that the court order the prosecution to produce any evidence that the Accused was even informed about the existence of this web site or how to access, much less any necessary information and instruction on how to obtain any specific documents or information from it relating to this matter.

Second, you will also find that they very often attempt to claim that they are automatically and fully authorized by Art. 27.14(d) to use the citation alone as the complaint against you, and that you are required to enter a plea based solely upon the existence of the citation alone. This is yet another one of their outright lies made in a blatant attempt to violate your fundamental rights and the rules of criminal procedure. Coercing the Accused into entering a plea based solely upon the citation without properly and accurately informing him/her of their rights, and which ones they may be unknowingly waiving by doing so, is a direct violation of Arts. 2.04, 2.05, and 27.14(d), Code of Criminal Procedure, and the due process rights of the Accused under the provisions of Art. 1, Sec. 10, Texas Constitution, and Arts. 1.05 and 45.018(b), Code of Criminal Procedure. The judge and the prosecutor are knowingly and willfully acting in concert and collusion to misinform the Accused in a such way that one can only assume is specifically intended to violate his/her rights by falsely stating how Art. 27.14(d) actually operates. Neither the prosecution nor the court is authorized to use the citation in place of a complaint unless the requirements of 27.14(d) have been complied with, and they most certainly have not at this point unless someone is criminally forging the signature of the Accused on the required written waiver.

In its operation as written, Art. 27.14(d) makes it mandatory that, before the court may use the citation in lieu of properly verified criminal complaint, the Accused and the prosecutor must both agree to, and both sign, a written waiver allowing the court to accept a plea of “guilty” or “nolo contender” only, and then proceed to adjudicate and rule on that entered plea absent a verified complaint. And that waiver must be filed in the trial record of the court prior to taking these actions. Obviously, if you haven’t ever signed such a waiver, then the court’s authority to use the citation in place of a valid verified complaint under Art. 27.14(d) must be non-existent, and therefore, a knowing and willful lie intended to deceive the Accused into unwittingly waiving their fundamental right to being served with a valid complaint that provides the otherwise mandatory proper, sufficient and timely notice of the allegation(s). Not to mention an underhanded due process denying attempt to cause you to waive your right to challenge the form and substance of the complaint(s) by failing to object to either issue, thus, allowing them to continue with the prosecution against you even if the complaint is faulty in form or entirely false in substance.

The use of the citation as the complaint also raises yet another issue, that of jurisdiction being properly invested in the court. If you read any number of Texas court cases relating to a criminal complaint as being the only charging instrument necessary to invest a justice or municipal court with jurisdiction of the offense for the purpose of trial, you will find that those cases have set the existence of such a complaint as the minimum bar by which the court may be invested with such jurisdiction. And there should be no legitimate question that a mere citation is well below that minimum bar in that it does not meet all of the statutorily mandated requirements for a valid complaint under the provisions of Art. 45.019(a), Code of Criminal Procedure. Furthermore, the court opinions themselves are in direct violation of both Art. 5, Secs. 12(b) and 17 of the Texas Constitution, both of which require that an indictment or information be filed in conjunction with a criminal statement/affidavit in order to initially invest a trial court with jurisdiction.

The Texas district courts of appeals and the court of criminal appeals have all penned opinions stating that these constitutional provisions requiring a court’s jurisdiction to be invoked by the filing of a valid indictment or information are somehow irrelevant and of no legal value or authority. And it is not any real problem at all to prove that they have erred in their logical and literal analysis of the language of these constitutional provisions. The Texas Constitution never states that jurisdiction, once properly invested in a court by the filing of such charging instruments, is later lost if an indictment or information is quashed or otherwise found to be invalid. It states only that they must initially exist for jurisdiction to be initially invested. And the due process benefits and protections for the rights of the Accused inherent in following such a procedure should be rather obvious.

Furthermore, the Texas Constitution also alludes to the fact that a sworn statement/affidavit that was filed in conjunction with an indictment or information, which is the only thing that could lawfully provide the basis for either, may continue to serve as the basis for the court to maintain its now properly invoked jurisdiction, and may continue with the necessary proceedings and any resulting trial even if the indictment or information is quashed. But absolutely nowhere does the Texas Constitution state or infer that an unsworn and merely verified criminal complaint alone is in any way authorized to form the basis for initially invoking any court’s jurisdiction. Nor does it state that a criminal complaint is the equivalent of a criminal statement/affidavit, which it legally can’t be, because a statement/affidavit is normally written and then signed by a person with competent firsthand knowledge of the facts alleged within it, and it will also contain a proper jurat declaring that it is signed under penalty of perjury.

Furthermore, a statement/affidavit is only valid and admissible if the person that made it has competent firsthand knowledge of all the facts alleged in it and can both swear and testify to the validity of those facts under penalty of perjury, while a criminal complaint does not require any such criteria. In fact, a criminal complaint such as is filed in most traffic cases is almost always an instrument of hearsay rather than an actual firsthand accounting of facts. This is a very important legal difference that exists between a legally sworn criminal statement/affidavit made under penalty of perjury and an unsworn criminal complaint that is not made under penalty of perjury and is often hearsay in nature. That is why I argue that a criminal complaint and a criminal statement/affidavit are absolutely not the same instrument, and only the properly sworn criminal statement/affidavit would be constitutionally and legally valid as a charging instrument after the quashing of an indictment or information.

In Texas you see, anyone can make a criminal complaint about anything that they actually believe may be a crime, whether they actually have firsthand knowledge of the crime alleged or merely believe that a crime they have only heard about from someone else has actually occurred. But, in neither case involving Class C misdemeanors is the actual criminal complaint signed under penalty of perjury, nor is it based upon a sworn criminal statement/affidavit that is. It is simply not required that the person making it actually have firsthand knowledge of the facts of the crime they are reporting, thus, potentially making the criminal complaint an accusatory instrument comprised entirely of hearsay.

And even if the person who writes up and signs a criminal complaint does have firsthand knowledge of everything in it, it still contains no proper jurat, and therefore, is still not signed “under penalty of perjury.” Which means that everything written in it could be completely false and no one could legally do a thing to the one that bore false witness by making and signing it. And this is true even though the actual result is the slander and liable of the person named in a document that will now potentially exist as a matter of permanent public record. And when such a criminal complaint does turn out to be false, the person who signed it will not be charged with falsifying a governmental record and making a false statement like they would have been if they had done the same thing in a proper criminal statement/affidavit sworn “under penalty of perjury.” But the law says that they cannot be so charged. Which makes a verified criminal complaint the exact constitutional and legal opposite of a sworn criminal statement/affidavit which must be made under penalty of perjury and based upon firsthand knowledge of the affiant. And that is why I make the argument that a signed and merely verified criminal complaint alone, without an indictment or information based upon a properly sworn criminal statement/affidavit made “under penalty of perjury,” is completely insufficient to invest any kind of court whatsoever with any form of jurisdiction, as any such criminal complaint is nothing more than an unsubstantiated accusatory instrument that may be used solely for the purpose of initiating an evidentiary investigation into a matter, but not actually prosecuting it.

Furthermore, there is the question of the actual source of the criminal complaint that is filed with the court, and whether it came from either the prosecution or the clerk of the court. A criminal statement/affidavit that is signed under penalty of perjury is almost always one that was written by the person that will sign it as swearing to the facts alleged in it, while the criminal complaint filed by the prosecution or the clerk of the court is never written by the officer that signs it as the affiant. Most likely due to the fact that the officer does not know if a crime was actually committed or not as s/he has no real clue as to what the necessary elements of the alleged offense(s) even are or if they all even existed at the time of the alleged offense, so someone else usually writes it up and just has the officer sign it while they verify it.

But, when the criminal complaint is both written and signed by the clerk of the court, it raises yet another series of due process issues relating to the agency of the court, the lack of impartiality by the court, and the physical custody of the official records in relation to the case file and evidence. The potential due process dangers of this situation are egregious and unacceptable, and should be blatantly obvious, even to the morons that populate and control our so-called justice system.

Let’s begin with the fact that the clerks of the court, the same clerks that just acted in unison to sign and verify the criminal complaint that is being used against the Accused, actually do so as direct agents of the judge, just as they do in all things involving that court. And that same judge is now presiding over a case in which s/he is, legally speaking, then also the actual accuser, since the judge’s direct agent(s), the clerk(s), is/are the affiant(s) on the complaint. Then, in addition to those issues, the same combination of clerk(s) and judge who are now legally acting via agency as a singular entity that is the accuser in the matter, are also acting as both the trial judge and the official custodian of the trial record. Do you understand yet? They are doing all of this in the same legal matter that is now being adjudicated before that very same court. There could be no bigger corrupt influence and conflict of interest or denial of due process outside of an actual extra-judicial lynching or firing squad.

Third, another way the Texas courts screw the Accused in their right of due process is to refuse to provide him/her with an “examining trial” under the provisions of Art. 16.01, Code of Criminal Procedure. It is well established law that, in any case where a warrantless arrest is perpetrated, the initial presumption under the law is that the arrest is unlawful absent a valid warrant until a favorable determination of both reasonableness and probable cause have been made by a neutral and detached magistrate. And Texas law provides for only one kind of criminal procedure for testing the reasonableness and probable cause validity of a warrantless arrest, and that is in an examining trial.

In short, in warrantless arrests involving Class C or other misdemeanor cases, the court must still be required to perform an examining trial for the purpose of reaching two separate and distinct probable cause determinations; whether or not the warrantless arrest was lawful, and; whether or not enough facts and evidence exists to establish the necessary probable cause to actually charge the Accused with the commission of a crime. Our Texas courts consistently violate the due process rights of those accused of having committed virtually any class of misdemeanor offense by denying them in their right to have both of these probable cause determinations made by a neutral and detached magistrate. The existence of reasonableness and probable cause are simply and unlawfully presumed as a matter of governmental expediency and expense, and in total disregard for the rights of the Accused to have such determinations made based solely upon admissible facts and evidence rather than merely rubber-stamping the personal presumptions and opinions of the arresting officer and prosecutor.

Fourth, and yet another “screw you” by our courts, is their consistent failure to inform the Accused their rights as required by Arts. 15.17,[9] 38.22, and 38.23, Code of Criminal Procedure, and to afford them assistance of counsel as is constitutionally and statutorily protected and required in all criminal prosecutions by Art. 1, Sec. 10, Texas Constitution, and Art. 1.05, Code of Criminal Procedure.

Let it also be known that I have personally witnessed a district judge state in open court that “Texas does not recognize bifurcated representation.” Now, what this judge was really saying is, “The Texas courts have created their own ‘law’ that forbids you to speak for yourself if you happen to have hired a bar card carrying attorney to act as your legal counsel.” The problem with this statement is that it is provably dead wrong, and in practice, is a complete violation of both of those very same articles of the Texas constitution and the Code of Criminal Procedure, where it is clearly stated verbatim in each that the Accused individual “… shall have the right of being heard by himself or counsel, or both… .” Just what the hell does this district judge think the term “both” means in the clauses of the Bill of Rights and Code of Criminal Procedure? And by what authority does he or any other judge sitting in any other court act to declare those provisions void and of no effect? Can you understand that this is clearly a case of sedition and treason under the Texas Constitution? Anyone? In other words, the district and higher level courts have declared their rulings and the rules of the state bar association to be superior to the Texas Constitution’s Bill of Rights and separation of powers clause, as well as the laws created by the legislature.

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So, it shouldn’t surprise you that the moment will eventually arrive where the court is going to unlawfully act yet again in concert and collusion with and on the behalf of the prosecution to unlawfully coerce or deny you in each of these aforementioned due process rights that rightfully belong to you. And that moment will come when the municipal judge or justice of the peace utters the words “how do you plead?

And this is where a cunningly designed and placed due process “gotcha’” is lurking, hidden from obvious observation, but there nonetheless. And it begins and ends with an unlawful and unjust collusion between the prosecutor and the court to knowingly and willfully rearrange the sequencing of the criminal procedures in such a way that you are unlawfully coerced or tricked into automatically waiving and losing several very important due process rights.

The court will usually attempt to get a plea from you during the course of your initial appearance proceeding. And if you come in earlier than the date and time specified on the citation, then it is more than likely that a clerk of the court will try to get you to enter a plea with them. They might even threaten you that failure to enter a plea now could very well result in a warrant being issued for your arrest that will falsely allege that you failed to appear as allegedly required by the citation. And it is an imperative to your right of due process and proper procedure that you decline to do so in either instance. Note that I said “decline,” not “refuse.” If you refuse, then the justice or judge is authorized to enter a plea of “not guilty” on your behalf pursuant Art. 45.024, Code of Criminal Procedure.

The problem with this statutory authorization in relation to Class C misdemeanor cases, is that it allows the court to knowingly and willfully waive several very important due process rights without either your knowledge or consent. Making it very easy for the prosecutor and the court to gain a jurisdictional advantage over you that they otherwise would be unable to achieve without first following proper procedures that would normally act to protect the Accused’s due process rights. At this point in time, however, the Code of Criminal Procedure literally serves to directly authorize the prosecutors and courts to commit due process rights violations at their discretion by simply entering a plea on your behalf, regardless of how many other rules or procedures that they may have broken or skipped over so far whether you have objected to it or not. You must understand this. That entering of a plea by the justice or judge is an action that results in the immediate nonconsensual waiver of fundamental rights belonging to the Accused to which they are absolutely entitled, and they were simply spat upon by the court as if they never existed. And that justice or judge can do so without fear of repercussions, culpability, or accountability by simply changing the order in which s/he performs certain procedures while also not informing you of your rights.

Now, before we continue on with the discussion of how to object to this out-of-place demand for a plea, consider everything you have learned up to this point about the proper and required procedures this judge and prosecutor are required to follow, and exactly what you have seen so far as to where and how they have failed or refused to do so. It is your duty to make the record for appeal so as to prevent them from getting away with these violations. This is not the same thing as you having to shoulder the burden of proof so as to try and prove your innocence, so don’t confuse the two. Just understand that the way that you are going to have to do this is by making both spoken and written timely legal objections.

Also, be forewarned that the judge will most likely attempt to prevent you from making the oral record, even with a properly formulated and stated objection. However, we really have only two options for doing so; make a rather short verbal objection that superficially touches on the legal points of the objection and then file a more detailed written list of objections later, or; be detailed enough in both the oral and written record so as to be fully covered in the record on appeal. The first option is more dangerous in that the appellate court may, whether intentionally or unintentionally, mistake the legal basis and intent of your shorter oral objection, followed by failing or refusing to read your more detailed written one. Personally, I prefer doing the latter, making a more detailed oral objection that very nearly mirrors what will also become my written one for the record. And if the judge attempts to cut me off before I have completed stating it, then I object to that as well and demand that I be allowed to complete my full objection for the record.

Okay, the fateful moment arrives and the judge asks “how do you plead?” Your response should automatically play out to be something very similar to the following:

You:    “Is the court willing to accept a coerced and unconscionable plea from the Accused?

Judge:  “What do you mean by an ‘unconscionable’ plea?”

You:    “The prosecution has failed to provide the Accused with proper notice in the manner and time required by law under the provisions of Art. 1, Sec. 10, Texas Constitution, and Arts. 1.05 and 45.018(b), Code of Criminal Procedure, thus depriving the Accused of sufficient opportunity to examine the complaint(s) so as to have proper, sufficient and timely notice of the allegations being made and to prepare a proper challenge or response, including the entering of any plea. The Accused has never been served with a copy of the criminal complaint(s) prior to this proceeding, which is a direct violation of the Accused’s due process rights under those same provisions of law.

Judge:  “Well, since you are refusing to enter a plea yourself, the court will enter a plea of “not guilty” on your behalf.”

You:    “Objection! The court is intentionally misstating the facts of this matter to skew the record. At no time has the Accused refused to enter a plea. The court was specifically asked if it was willing to accept a coerced and unconscionable plea from the Accused. That does not in any way constitute a refusal by the Accused.

            Furthermore, the entering of a plea constitutes a waiver of fundamental due process rights that the Accused does not consent to having waived by the court at this time, specifically, the right to proper, sufficient, and timely notice, the right to challenge in personam jurisdiction, the right to challenge the form and substance of the criminal complaint(s) and charging instrument(s), and the right to an examining trial to make a proper determination as to the reasonableness and probable cause allegedly authorizing the warrantless arrest and criminal charging of the accused by Officer Shitforbrains.

Judge:  “You are being charged with a misdemeanor. Texas law says that you only have a right to an examining trial if you are charged with a felony.”

You:    “Objection! That too is a gross mischaracterization and misstatement of the law. The Code of Criminal Procedure does not state any such thing regarding an examining trial. That is a policy created by the misrepresentations of prosecutors and the courts, not the law. A warrantless arrest, search, or seizure is considered unlawful from the very beginning, as the police officer is the only person making both the accusation and the probable cause determination as to whether or not any law was actually being broken and who is allegedly guilty as well as whether or not his warrantless arrest, search, or seizure was lawful. A police officer has no lawful authority whatsoever to make a determination of probable cause for the purpose of adjudication or incarceration. Only a neutral and detached magistrate may make a determination of probable cause relating to a warrantless arrest, search, or seizure pursuant [case law needed.] No such order attesting to any such examination and determination exists in the court record. And the Accused has a due process right to have those determinations properly and lawfully made prior to any prosecution in a criminal matter, regardless of the Class of offense being alleged.

Judge:  “Well, your objections are overruled and the court is still entering a plea of ‘not guilty” on your behalf.”

You:    “Objection! It is now clear that you are prejudiced against the rights of the Accused and cannot and will not act impartially in this matter, as you are willfully refusing to comply with the law, the rules of procedure, or to act in the best interest of the Accused’s due process rights. On those grounds, I hereby move for your immediate disqualification from this matter.

            I further move for a continuance for the purpose of preparing and filing a properly sworn Motion to Disqualify and my supporting judicial conduct and professional ethics complaints relating to your actions in this proceeding.

From this point forward the only thing you say in response to any questions, statements or rulings by the judge, other than granting your continuance, should be:

Objection! I have made a proper demand for your disqualification under the provisions of Sec. 29.052, Government Code, wherein you are directed to cease and desist in all proceedings until the motion to disqualify has been heard and ruled upon.

Now, before you get all hot and bothered by my suggestion of disqualifying a justice of the peace under statutory provisions obviously written for a municipal judge, let me lay out a little logic for you on the matter. While it is true that the provisions of Sec. 29.052, Government Code, are written as being specifically directed at municipal judges and not justices of the peace, there is no other provision of law or statute that describes a similarly specific procedure for disqualifying a justice of the peace. There simply is no other described procedure for disqualification of a justice or judge than that found in Chapter 29 of the Government Code.

Furthermore, considering that both courts allegedly have the same type and level of criminal jurisdiction, logic dictates that it must be possible to disqualify a justice of the peace on any of the same legal grounds that can be used to justify the disqualification of a municipal judge. And since there is only the one defined procedure for doing so, logic says that we should be able to apply that same procedure to both in the absence of any other direction on the process. Let the higher courts tell us later if we are wrong or if there is a different disqualification procedure for justices of the peace than there is for municipal judges. But they would also have to show us where statute says that’s the case, and I doubt that they can actually do so.

There is one final but important distinction as how you go about making the record depending upon whether your trial court actually is or is not a court of record. All the phrase “court of record” means is that the court you are in is one that is required to provide the parties with an official verbatim record and transcription of any proceedings that occur in that court, provided at least one of the parties requests that it do so. While a court of no record will have neither the capability nor the statutory requirement to provide such a record, in which case your appeal will be conducted as a “trial de novo” (meaning “from the beginning”) in the court legislatively designated to handle such cases after the initial trial. In a court of no record, the only record that goes forward on the appeal to the de novo court will be whatever pleadings and other documents that were filed in the trial court record prior to the forwarding of that record for the purpose of the appeal.

You don’t have to believe me about any of this now as to this being the actual process you will see unfold, but just go through this process even once, and you will not be long in coming back and apologizing to me for your having ever doubted me.

Welcome to judicial corruption, sedition, and treason Texas judiciary style.

[1] To understand why you are being falsely accused, you must first understand what the term “transportation” actually means in relation to a regulatory code and its statutes, and why the defined subject matter activity of “transportation” does not actually apply to you and most other American’s traveling upon the highways.

[2] Nowhere in any Texas law, code or statute does the Texas Legislature define the singular term “transportation.” But, that doesn’t mean that no definition exists in law. In the case of Interstate Commerce Com’n v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047, the United States Supreme Court stated that the term “transportation” means “The movement of goods or persons from one place to another, by a carrier.”

The analysis same holds true for the singular term “carrier” in that it too is not defined by the Texas legislature in any law, code or statute whatsoever. So we must once again turn to the controlling definition as found in other law, and that definition is “… any person engaged in the transportation of passengers or property by land, as a common, contract, or private carrier, or freight forwarder as those terms are used in the Interstate Commerce Act, as amended, and officers, agents and employees of such carriers.”

The Interstate Commerce Act, in 18 U.S.C.A. § 831, defines “carrier” as an “Individual or organization engaged in transporting passengers or goods for hire.”

Both definitions can be found in Black’s Law Dictionary 6th Edition.

[3] See my previous articles titled “No Articulable Probable Cause,” “Understanding the Fruit of the Poison Tree Doctrine,” and “Challenging the Complaint in a “Transportation” Related Offense.”

[4] Chapter 543, Texas “Transportation” Code.

[5] IMPORTANT** – This Word document contains a statutory breakdown of Art. 15.17 of the Code of Criminal Procedure.  Study it carefully so you can identify everything that isn’t done and that potentially deprived you of a due process right under both Texas and federal law.

[6] United States v. Mendenhall, 446 U. S. 544 (1980)

[7] California v. Hodari D., 499 U.S. 621 (1991)

[8] Texas Government Code Sec. 311.016(4).

[9] IMPORTANT** – This Word document contains a statutory breakdown and cross-reference of Art. 15.17 of the Code of Criminal Procedure.  Study it carefully so you can identify everything that isn’t done and that potentially deprived you of a due process right under both Texas and federal law. Cross-Reference Table TxCCrP Art 15_17

 

Cross-Reference Table TxCCrP Art 15_17

2 thoughts on “Texas Muni & Justice Courts – Understanding the Due Process Consequences of Entering a Plea

  1. you spent a lot of time/research on this issue and that’s fine. So now I ask, what needs to be done so that people who drive irresponsibly, e.g. DUI, speeding, etc.. can be dealt with? Or are we to believe there is total anarchy on the road and we can do whatever we want? Like those people who drive at or close to say 100mph and weave in-and-out of traffic, cutting people off and on occasion cause a multi-car wreck where people are severely injured and/or killed? If a policeman sees this kind of driving, is he/she to do nothing about it?

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    • Despite your question, I am sure that you have sense enough to already know its answer. And as an ex-deputy sheriff myself, my comments on those that would rather classify themselves as ‘law’ enforcement instead of “peace officer” is based upon personal knowledge and experience. And I have never understood how stating the facts and truth of such matters could be “bad form.”

      But, just in case I’m wrong about your level of sense, I’ll try to provide you with a perspective that should answer your question satisfactorily.

      There are already laws that deal with reckless endangerment and negligence. The main difference between them and the regulatory codes is that the state must actually show an intent and/or criminal negligence resulting in harm or injury in such cases. They didn’t want that burden of proof because it actually required due process and knowledge of the actual law in order to punish. They much prefer the McDonald’s drive-thru version of the justice system that they have managed to put into place because of our apathy in protecting ourselves by staying informed and involved in our system of government and using that information to serve on juries and protect the rights of every individual.

      What you are asking me to do is to provide you with the key to solving the age-old problem of making people consistently act intelligently and with consideration for others rather than like the apathetic and self-absorbed fools they have been trained to be.

      But that is neither within my power nor my job anymore than it is yours or anyone elses’, especially this thing we call “government.” Individual’s need to once again be taught that they MUST and WILL take responsibility and accept the liability for their own actions or suffer the consequences for failing to do so. And no use of force or coercion by government should be allowed to take place unless and until such actions that cause harm to another or their property either are taking or have taken place.

      However, the state is NOT authorized to act in a manner that adversely affects everyone just to try and prevent the unpreventable. And that is precisely what codes and statutes like these actually do. Especially when misapplied and abused, which they most certainly are.

      So as to directly address your question of someone traveling at an ‘excessive’ speed; excessive to whom exactly? Had you grown up in Europe and made regular use of the autobahn, you would be screaming about how slowly we actually travel upon the highways here in America. By that same token, if America’s highways had always had speed limits of 100+ MPH as the average, you wouldn’t be complaining about someone that is only going as fast or slightly faster than the regular flow of traffic by doing a 120 MPH.

      There is also the point that the speed itself is NOT and never has been the issue. The United States Supreme Court and many federal courts have previously ruled that speed limits alone are completely invalid as a measure of either legality or negligence relating to a “driver’s” performance as they are completely arbitrary, because it is just as possible for an automobile to kill someone traveling at one mile per hour as it is at one hundred.

      Thus, your question would be invalid when these conditions are applied.

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